# l<'AZAL HUSSAIN AND ARSHAD AHMAD v. THE STATE OF JAMMU AND KASHMIR

- **Citation:** [1970] 1 S.C.R. 684
- **Court:** Supreme Court of India
- **Decided:** 1969-07-29
- **Case number:** Writ Petition No. 111 of 1969
- **Bench:** S. M. Suw, G. K. Mitter, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-azal-hussain-and-arshad-ahmad-v-the-state-of-jammu-and-kashmir-4680
- **Pages:** 4

## Headnote

J11mmu and K~hmir Pre»entive Detention Act, 1964 s. 3(1 )(a) (i)
and s. 8-lnfor1na11on to detenu that it would be against puhlic interest
to communicate grounds of detenJion to him-It must be given lvithin 10
dars.
B
In a pelilion under article 32 of the Constilution the firs! petitioner'• c
<le1enlion under s. 3 (I )(a)(i) of the Jammu and Kashmir
i'revenlive
Dctenlion Ac!, 1961 was challenged as illegal on the basis thal no grounds
of dclention were served on him but that an order infornJing bin1 that it
\\·oul<l be against public interest to disclose the grounds to ilim was scrvrd
on him after the expiry of 10 days prescribed in section S; it 'Nas contended that his detention was, therefore. iJlegal.
In the case of the second petitioner it was claimed that the affidavit
D
in reply _to the petition which set out the facts relating to lhl'- service of the
order of detention and an order under the proviso to Sc!Ction 8 was swora.
to by an Additional Secretary on the basis of information <ll!rived from
the record of the case and not by the Jail Superintendent who wa!. i.lleg~d
to have served the orders on the dctenu.
HELD : (I) The delenlion of !he firs! pe1i1ioner was illegal and he
mu.;;t be released.
E
h i' the duty of the detaining authority to communicate the j..rounds
of detention within 10 days of the date of detention if the case does not fall
within the proviso to s. 8. If the detaining authority neither communicates
the grounds of detention nor infonns the detenu under the proviso •vithin
I 0 days of the de1en1ion. the delention would becnme illogd a"d a subsequent order under the proviso would not have the effect of rendC"ring the
dclcnlion legal.
F
Abdul Jabar Butt v. Srate of lammu and Kashmir, [1957) S.C.R. 51,
59.
(2) The petition filed by !he second petitioner must be dismissed.
The State had annexed to its affidavit a copy of the Government detention order on which the Jail Superintendent had endorsed the f:ict of its
5crvice.
In view of this it was not necessary for the Superintendent to
have filed an affidJvit of having effected service.
ORIGINAL JURISDICTION : Writ Petition No. 111 of 1969.
Petition under Art. 32 of the Constitution of India for a writ
in the nature of habeas corpur.
R. K. Garff ~
Anil Kumar Gupta, for the petitioners.
R. Gopalakrishnan an:I R. N. Sachthey, for the re~ndent.
G
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FAZAL HUSSAIN v. J, & K, STATE (Sikri, !.)
685
The Judgment of the co.urt was delivered by
Sikri, J.
This is a join~ petition by two detenues under art.
32 of the Constitution praying for the issue of a writ of habeas
corpus or other appropriate writ, direction or order directing that
the petitioners be released.
The petitioner, Arshad Ahmad, was detained in pursuance of
Detention Order dated September
19, 1967, passed under s.
3(l)(a)(i) of the Jammu & Kashmir Preventive Detention Act,
1964. The copy of the order on the record shows that the order
was served on the detenu by Jaswant Singh, Deputy Superintendent of Police (CID), Jammu on September 27, 1967.
No grounds of detention were served on the detenu, but an
order dated October 25, 1967, issued by the Secretary to the
Government, Home Department, was served on him informing
him th:it it would be against the public interest to· disclose the
facts or tlie grounds of detention to him.
The learned cqunsel for the petitioner, Mr. Garg, contends
that the order dated October 25, 1967, was served too late and
the detention of the petitioner became illegal when the time for
serving the ground,s of detention had expired.
Section 8 of the J ammu and Kashmir Preventive Detention
Act, 1964, provides that "when a person is detained in pursuance
of a detention order, the authority making the order shall, as
soon as may be, but not later than ten days from the date of detention, communicate to him the grounds on which the order has
been made, and shall afford him the earliest opportunity of making a representatidn against the order to the Government." Bu

## Text

l<'AZAL HUSSAIN AND ARSHAD AHMAD
v.
THE STATE OF JAMMU AND KASHMIR
July 29, 1969
(S. M. Suw, G. K. MITTER AND K. S. HEGDE, JJ.)
J11mmu and K~hmir Pre»entive Detention Act, 1964 s. 3(1 )(a) (i)
and s. 8-lnfor1na11on to detenu that it would be against puhlic interest
to communicate grounds of detenJion to him-It must be given lvithin 10
dars.
B
In a pelilion under article 32 of the Constilution the firs! petitioner'• c
<le1enlion under s. 3 (I )(a)(i) of the Jammu and Kashmir
i'revenlive
Dctenlion Ac!, 1961 was challenged as illegal on the basis thal no grounds
of dclention were served on him but that an order infornJing bin1 that it
\\·oul<l be against public interest to disclose the grounds to ilim was scrvrd
on him after the expiry of 10 days prescribed in section S; it 'Nas contended that his detention was, therefore. iJlegal.
In the case of the second petitioner it was claimed that the affidavit
D
in reply _to the petition which set out the facts relating to lhl'- service of the
order of detention and an order under the proviso to Sc!Ction 8 was swora.
to by an Additional Secretary on the basis of information <ll!rived from
the record of the case and not by the Jail Superintendent who wa!. i.lleg~d
to have served the orders on the dctenu.
HELD : (I) The delenlion of !he firs! pe1i1ioner was illegal and he
mu.;;t be released.
E
h i' the duty of the detaining authority to communicate the j..rounds
of detention within 10 days of the date of detention if the case does not fall
within the proviso to s. 8. If the detaining authority neither communicates
the grounds of detention nor infonns the detenu under the proviso •vithin
I 0 days of the de1en1ion. the delention would becnme illogd a"d a subsequent order under the proviso would not have the effect of rendC"ring the
dclcnlion legal.
F
Abdul Jabar Butt v. Srate of lammu and Kashmir, [1957) S.C.R. 51,
59.
(2) The petition filed by !he second petitioner must be dismissed.
The State had annexed to its affidavit a copy of the Government detention order on which the Jail Superintendent had endorsed the f:ict of its
5crvice.
In view of this it was not necessary for the Superintendent to
have filed an affidJvit of having effected service.
ORIGINAL JURISDICTION : Writ Petition No. 111 of 1969.
Petition under Art. 32 of the Constitution of India for a writ
in the nature of habeas corpur.
R. K. Garff ~
Anil Kumar Gupta, for the petitioners.
R. Gopalakrishnan an:I R. N. Sachthey, for the re~ndent.
G
H
-
...
A
B
c
D
E
F
G
H
FAZAL HUSSAIN v. J, & K, STATE (Sikri, !.)
685
The Judgment of the co.urt was delivered by
Sikri, J.
This is a join~ petition by two detenues under art.
32 of the Constitution praying for the issue of a writ of habeas
corpus or other appropriate writ, direction or order directing that
the petitioners be released.
The petitioner, Arshad Ahmad, was detained in pursuance of
Detention Order dated September
19, 1967, passed under s.
3(l)(a)(i) of the Jammu & Kashmir Preventive Detention Act,
1964. The copy of the order on the record shows that the order
was served on the detenu by Jaswant Singh, Deputy Superintendent of Police (CID), Jammu on September 27, 1967.
No grounds of detention were served on the detenu, but an
order dated October 25, 1967, issued by the Secretary to the
Government, Home Department, was served on him informing
him th:it it would be against the public interest to· disclose the
facts or tlie grounds of detention to him.
The learned cqunsel for the petitioner, Mr. Garg, contends
that the order dated October 25, 1967, was served too late and
the detention of the petitioner became illegal when the time for
serving the ground,s of detention had expired.
Section 8 of the J ammu and Kashmir Preventive Detention
Act, 1964, provides that "when a person is detained in pursuance
of a detention order, the authority making the order shall, as
soon as may be, but not later than ten days from the date of detention, communicate to him the grounds on which the order has
been made, and shall afford him the earliest opportunity of making a representatidn against the order to the Government." But
the proviso to s. 8 states :
"Provided that nothing in this
sub-section shall
apply to the case of any person detained with a view to
preventing him from acting in any manner prejudicial
to the security of the State, if the authority making the
order, by the same or a subsequent order, directs that
the person detained may be informed that it would be
against public interest to communicate to him the
grounds on which the detention order has been made."
The learned counsel for the State contends that if an order
has been made under the proviso it does not matter whether the
order is made and served beyond the ten days' time specified in
s. 8.
We are unable to accept this contention. There is no doubt
that it is the duty of the detaining authority to communicate the
686
SUPREME COURT REPORTS
[ 1970] 1 S.C.R.
grounds within ten days of the date of detention if the case docs
not fall .within the proviso. If the detaining authority neither
communicates the grounds of detention nor informs the detcnu
under the provi~o within I 0 days of the detention, the detention
would become 11lcgal and a subsequent order under the proviso
would not have the effect of rendering the detention legal.
A similar point arose before this Court in Abdul Jabar Butt
y. Stale of lammu & Kashmir(').
This Coun was then considering the Jammu and Kashmir Preventive Detention Act (IV of
Sambat 2011) and similar provisions contained therein. Das, C.J.,
observed:
"If the grounds are not communicated to the detenu within the period of time prescribed by the expression "as soon as may be" the detenu becomes deprived of his statutory right under sub-s.(1) and his
detention in such circumstances becomes illegal as being
otherwise than in accordance with procedure prescribed
by law.
·In order to prevent
this result in a certain
specified cases the proviso authorises the Government
to issue the requisite declaration so as to exclude entirely
the operation of sub-s. (I). It. therefore, stands to reason and is consistent with the principle of harmonious
construction of statutes that the power of issuing a declaration so as to prevent the unwanted result of the
operation of sub-s. (I) should be exercised before that
very result sets in."
Although there is some change in the language in the presen•
act in substance the provisions are similar as far as the present
point is concerned. W c arc here concerned with the liberty of a
subject and we must adopt a construction which would not have
the effect of enabling the executive to make an order under the
proviso at any time after the lapse of ten days specified in s. 8.
Even from the practical point of view we arc unable to sec that
the Government would experience any difficulty in deciding within
ten days whether the grounds should be served or not in the
public interest.
All the material is with the Government when it
passes the order of detention and a period of ten days is ample
for the Government to make up its mind whether the case falls
within the proviso or not.
In the result we hold that the detention of the petitioner
Arshad Ahmad is illegal and he should be released.
Coming to the case of the second petitioner Fazal Hussain,
he was detained by order dated January 3, I 968, passe<I under
(I) (19571 S.C.R. ~I, 59.
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FAZAL HUSSAIN' V, J. & K. STATE (Sikri, J.)
687
s. 3(1) read withs. 5 of the Jammu and Kashmir Preventive Detention Act, 1964.
The order of detention was served on the
petitioner in the Central Jail on January 8, 1968, and the same
was read out to him.
By order dated January 11, 1968, the
petitioner was informed that it was against public interest to disclose facts or to communicate to him the grounds on which the
detention order was passed.
The affidavit stating these facts is
sworn to by the Additional Secretary to the Government, J ammu
and Kashmir, Home Department, and it is stated in the verification that these facts were-stated on the basis of information derived
from the record of the case which he believed to be true.
The learned counsel for the petitioner contends that the
Deputy Superintendent Central Jail, who is alleged to have served
the order of detention on the petitioner, should have filed the
affidavit.
The State has annexed to the affidavit a copy of the
Government Detention Order and below the detention order the
following endorsement exists :
"The notice of this order has been served upon Shri
Fazal Hussai~ s/ o Ayub Khan
detenu
by reading
over the same to him.
Sd/- Dy. Superintendent
Central Jail, Jammu. 8/1"
Jn view of this endorsement existing on the order of detention we do not consider that it was necessary that the Deputy
Superintendent, Central Jail, should have filed an affidavit to the
effect that he hac( served the order of detention on the detenu
Fazal Hussain.
No other point is raised.
The petition of Fazal Hussain accordingly fails and 1 is dismissed.
R.K.P.S.
Petition dismissed_